As the title of this book indicates, Bruce Ackerman does not believe that the Founding Fathers produced a finished, or flawless, frame of government in 1787. In particular, their method for selecting the president of the United States was ill-conceived and left critical questions of procedure unanswered and open to contestation. These failures aggravated the controversy surrounding the presidential election of 1800, when neither John Adams nor Thomas Jefferson won a majority in the Electoral College and Federalists in the outgoing House of Representatives nearly threw the election to Aaron Burr. As the House deliberated, the governors of Massachusetts and Virginia readied their militias to prevent each other's favorite son from stealing the election. Ackerman suggests that a civil war was avoided only by the statesmanship of Adams and Jefferson and the unraveling of a plot to install John Marshall as acting president.

Ackerman's purpose in telling this story is not to impugn the Founders so much as it is to praise others for rescuing the Constitution from political crises never imagined by the framers. He understands the Constitution as “an ongoing dialogue between the inspiring speculations of one generation and the worldly experience of the next” (p. 266), with worldly experience supplying important correctives to inspiring speculations. The “miracle in Philadelphia” was only the first chapter in this supremely political dialogue; the “revolution of 1800” was another, and it resulted in significant changes to the Founders' vision of the presidency and its place in the system of checks and balances. Whereas the Founders expected the president to restrain majority factions, Jefferson acted as a champion of the majority and its right to rule without impediments. With himself and his congressional party on the side of the people, the only remaining check on the reign of public opinion was the Supreme Court, which after 1800 had to decide whether to bow to the will of the people or put Jefferson in his place out of deference to the will of the Founders.

Chief Justice Marshall was in the majority of delegates who ratified the Constitution in Virginia, and he was an exponent of the doctrine now known as originalism, which refers constitutional questions to the intent of the Founders. But Marshall also recognized that a Supreme Court comprised of Federalists was no match for a president whose Republican Party controlled both chambers of Congress and was intent on taming the federal judiciary. He opted not to enforce the Constitution but to adapt it. The example of the arch Federalist Marshall departing from the intent of the framers in the face of political reality is this volume's contribution to Ackerman's attack on originalism in We the People (1991), and his corresponding injunction that we, too, must review the Constitution in light of our worldly experiences.

The “switch in time” for Marshall was the decision in Marbury v. Madison (1803), wherein Marshall asserted the Supreme Court's power to review congressional legislation and executive action, but declined to use that power to make Jefferson honor Adams's “midnight appointment” of William Marbury. Marshall's opinion is routinely described today as a political masterstroke insofar as it avoided a showdown without surrendering the Court's independence. Ackerman argues that Marshall conceded much more than the Marbury decision alone suggests, however. He points to a companion case, Stuart v. Laird (1803), in which the Court let stand judicial reforms enacted by Congress in 1802. Under the reasoning of Marbury, these reforms should have been invalidated, yet the Supreme Court—with no dissent from Marshall—acquiesced in Republican efforts to undermine judicial independence.

Marshall's strategic retreat was not temporary. As Ackerman sees it, Stuart v. Laird was the beginning of a long line of cases in which Marshall accommodated a plebiscitary presidency within a constitutional framework built around a very different conception of the relation between the presidency and the federal judiciary. Regrettably, the specific doctrinal expression of Marshall's “synthesis of Federalist and Republican principles” (p. 10) is not explicated in this volume, nor does Ackerman analyze its long-term consequences, though he notes parallels in the New Deal clash between another popular President, Franklin Delano Roosevelt, and the Hughes Court.

The mainspring of Ackerman's argument is that Marshall's accommodation was necessary because Jefferson's victory reflected a permanent change in American politics: By 1800, the presidency had become the object of contestation between mass-based political parties. Hence, the winning candidate could claim a popular mandate and use the weight of public opinion to wear down judicial resistance to policy changes that faced constitutional objections; “presidential democracy” is Ackerman's shorthand for this development.

The rise of presidential democracy is frequently asserted by Ackerman, but his own account of the political intrigue surrounding the selection of a president in 1800 suggests that it was not very different from the limited competition between elite factions of, say, 1796. In fact, only six states actually held a popular vote for the president in 1800; legislatures choose presidential electors in all the rest, with cloakroom machinations on all sides. This implies that Jefferson's popularity was mostly personal, and not grounded in an electoral mandate from the mere 41,330 people who cast ballots for him. It was not until the election of Andrew Jackson that a plausible mandate for change was delivered by a mass political party, according to most historians of the American party system.

This is significant because a permanent accommodation of Republican principles was only necessary if Jefferson's popularity was matched by succeeding presidents. This was not the case; presidential democracy, in Ackerman's sense of the term, does not describe the distinctly unpopular presidency of James Madison or the feel-good administration of James Monroe. Of course, something other than the rise of presidential democracy might have required Marshall to make the accommodation identified by Ackerman. Perhaps the demise of the Federalist party and the gradual replacement of Federalists on the Court with Republican jurists prevented the chief justice from returning to the Founders' original intent. Ackerman alludes to this, but does not consider that it would have happened without the emergence of mass parties that justify the label of “presidential democracy.”

Without a stronger defense of the claim that presidential democracy arose by 1800, Ackerman's most provocative conclusions merit the Scottish verdict of “not proven.” His review of the election of 1800 and its ramifications is quite valuable in its own right, however, and his reinterpretation of Marbury v. Madison in light of the struggle between Jefferson and Marshall is both original and significant. Students of U.S. political and constitutional history will benefit from reading this book, and if they are not entirely convinced by the larger argument linking constitutional change and American political development, they must still reckon with its primary components.